Combating unfairness from prejudicial publicity

Minh Trong Bui and Michael Armstrong

South Australia

The seemingly limitless platform of the internet and 24-hour news cycle can create ‘prejudicial publicity’ against a criminal accused through mass or social media before and/or during trial. This publicity can result in significant delays in a trial, or even a permanent stay of proceedings — essentially creating a ‘neverending trial’.

To address this problem, the Juries (Prejudicial Publicity) Amendment Bill 2014 (SA) (‘the Bill’) was introduced into the South Australian House of Assembly on 22 October 2014.

In the Second Reading, the Attorney-General described the public policy objective of the Bill as responding to the public’s demand to know, and the media’s ever present determination to sensationalise.

One of the concerns the Bill seeks to address is highlighted in Dupas v The Queen (2010) 247 CLR 231, which involved an application for a permanent stay of proceedings due to adverse prejudicial publicity surrounding a particularly gruesome murder. While the permanent stay was not ultimately upheld, the finding in R v Glennon (1992) 173 CLR 592 that permanent stays ought to be granted in exceptional circumstances was adopted as authoritative.

The Bill is intended to negate threats to judicial process, while upholding constitutional requirements and protections for the accused.

If passed, it will amend the Juries Act 1927 (SA) to empower the Court with an absolute discretion to order a trial by judge alone if that is deemed necessary to ensure a fair trial. The exercise of this discretion will be subject to two factors.

First, the discretion will only be enlivened in circumstances where the accused applies for a stay of proceedings on the basis of adverse and prejudicial media publicity. Neither the prosecution nor the Court itself can apply for trial by judge.

Second, the Court can, after an application of an accused, exercise the discretion if it considers the publicity ‘prejudicial’, in that it has prevented, or may prevent, the accused from receiving a fair trial. The sole criterion in the Court exercising its discretion is the necessity in ensuring a fair trial.

The Bill builds upon amendments introduced in 2012 empowering the prosecution to apply for a trial by judge when there is a real possibility that the jury will be the target of intimidation, harassment, or undue influence. However, the 2012 amendments were confined to proceedings involving serious and organised crime offences. This Bill is in response to a more subtle form of jury interference, and applies uniformly to all offences.

The SA approach is less heavy-handed with regards to the ‘enlivening’ provision than s 615 in the Criminal Code 1899 (Qld), which also seeks to address the effects of adverse publicity. In Queensland, the prosecution may also seek trial by judge, although the accused must consent to the application. Section 615(5) allows the Court to refuse to make an order for trial by judge alone in instances where a factual issue involves the application of objective community standards. This consideration is not expressly provided for in the Bill, but it can be taken into account if necessary. Without this express provision, the Bill allows a uniform approach to be taken to all offending, as opposed to a more restrained approach with respect to certain offending — such as that involving judgments of reasonableness, indecency or dangerousness.

MINH TRONG BUI is an Associate at Lipman Karas, and MICHAEL ARMSTRONG is an Associate to the Honourable Justice Sulan of the South Australian Supreme Court.